Tanzina Vega: The power of protest is on full display across the country in the movement against racial injustice. At the same time, a number of states have passed laws that could criminalize fossil fuel protests. Kentucky, South Dakota and West Virginia have joined a dozen States that already have similar legislation on the books. At least five more states, including Mississippi are considering legislation that would criminalize environmental protests in the future.

To you understand what this could mean for our first amendment rights, I spoke with Alex Kaufman, senior climate reporter at HuffPost and Ron Krotaszynski, the John S. Stone chair at the university of Alabama school of law and the author of the disappearing first amendment. I asked Ron what the first amendment says about American's rights to attend any protest, including an environment one.

Ron Krotaszynski: Under the first amendment, we talk about freedom of speech a lot, but the amendment actually speaks to other kinds of expressive freedoms too, including assembly and petition.

If individuals, for example, with the Black Lives Movement, want to gather in public as a group to express their views, to speak their version of truth to power, and to petition their government, whether local state or federal to amend policies, to address those concerns, our constitution, going back to 1791 at adoption of the bill of rights secures that quite strongly, not absolutely, but quite strongly.

Tanzina: How exactly are some States criminalizing environmental protest specifically?

Ron: The bill, when it's modified state by state creates enhanced criminal penalties for trespass and for damage to fossil fuel facilities including pipelines. The other thing these laws do is create vicarious or third party liability for individuals who direct, advise, encourage, solicit, cause or insight, these are words taken from the statutes, someone else to trespass or damage after trespassing fossil fuel company property.

The problem is if a speaker at an environmental protest in any fossil fuel protest says something like, "Let's stop this pipeline now, or we must stop this pipeline explanation point!" They in theory could be charged with directing, causing, inciting, advising, encouraging subsequent bad behavior by someone who trespasses and then damages company property.

You essentially are requiring in theory protest organizers to indemnify fossil fuel companies for any damage that happens to be caused by someone who merely attended an event. This would have a profound and deeply troubling chilling effect on environmental public protest. It would essentially make protest organizers financially and criminally responsible for random bad acts by someone from the public who happened to attend a rally.

Suppose Greta Thunberg, the Swedish activist came to South Dakota had an anti fossil fuels rally and said, "Fossil fuels are immoral. We've got to stop these pipeline projects." If someone who attended that rally or a group of people who attended that rally at some point down the road, definitely down the road were to then trespass or damage the pipeline, the pipeline owner could seek to impose civil liability on Greta and or the state of South Dakota could bring criminal charges against her even though there's no proof whatsoever of any coordination, conspiracy, aiding, or abetting.

Greta Thunberg is just engaged in environmental protest, environmental speech. She has nothing whatsoever to do with any subsequent bad acts, but these laws seek to create a threat of legal liability on individuals or organizations that sponsor anti-pipeline or anti fossil fuels public protest that would obviously make it much more difficult and raise the stakes considerably and lead to self censorship by people who are legitimately concerned about greenhouse gas and non-renewable forms of energy.

The idea is to create this sort of free floating threat of legal liability, perhaps even without ever anticipating using that threat. The chilling effect is the same and in some ways the chilling effect is better if you don't actually pull the trigger and charge them because they won't know for certain whether the first amendment claim is good until they're facing civil or criminal liability, which could be bankrupting to their organizations. It's really clever and insidious in the way it's set up.

Tanzina: Now Ron, again, I'm not a constitutional scholar, so I'm just curious here, whether or not states rights' and in this case states that are crafting this type of legislation, trump the constitution and the right to free speech. Where does that line get drawn?

Ron: Well, under article six of the constitution there's something called the supremacy clause and judges, both federal and state take an oath that promises to place federal law, including the constitution and bill of rights over and above state law. Normally if a state law violated a first amendment right, both state and federal judges would have an obligation to enforce the federal right in particularly the first amendment.

The problem though is that we have a recent Fifth Circuit case called Doe v McKesson in which the Fifth Circuit allowed a suit to go forward against the organizer of a Black Lives Matter protest in Baton Rouge, a rock or brick was thrown at a policeman. He was injured. He didn't know who threw it. He actually sued the hashtag as well as the local organizer of the protest and the district court dismissed the litigation, but the fifth Circuit amazingly, incorrectly in my view, permitted the policemen's lawsuit to proceed against the organizer of the protest.

This is a form of vicarious or joint and several liability. There's no evidence whatsoever that Mr. McKesson in any way shape or form encouraged or facilitated directly the battery of the policeman. It should be a first amendment violation, but if the Fifth Circuit says it isn't, it's a problem.

Tanzina: Alex, you've been covering this for quite some time now. When did you start to see the trend of legalization to criminalize fossil fuel protest?

Alex Kaufman: It was really in the year after the Dakota Access Pipeline was completed, soon after Trump came into office. The Dakota Access fight was a real firestorm in late 2016, and drew a lot of outrage from some in the industry who were frustrated by the resources and attention that were being placed on those opposing that project.

Sure enough, in the months that followed its completion you saw the shopping round of a model bill from the American legislative exchange council, the conservative policy shop that sought to up the penalties for protesting against projects like these.

In the wake of that, throughout 2018 and then throughout 2019, and again, a major uptick since the pandemic began in March, you've seen these bills making their way through state legislatures.

Tanzina: Let's talk about who's behind this legislation. It doesn't happen in a vacuum. First of all, let's talk about who the American legislative exchange council is and what their involvement in crafting some of this legislation has been so far.

Alex: ALEC is a big policy shop that is known in some circles as a dark money group. It does not always have to disclose all of its donors and its donors often include very large corporations. There are some companies that have distanced themselves from ALEC over the years, including Exxon, but overwhelmingly the fossil fuel industry has been a major donor and participant in what it does.

It also operates in many other spheres, fighting against students on campuses who protest against controversial and often racist speakers, fighting against LGBT rights and carrying out various other things that are considered to be part of the agenda of the right wing of the Republican party but this has been a particular cause of that organization for some time, they have been actively promoting this in coordination with members of the industry.

You have had trade associations that Exxon, Marathon Petroleum, Chevron are a part of that are actively pushing this model bill that they put together. You have individual companies that have been actively lobbying some of the lawmakers who are behind these bills.

It's not always easy to tell from the lobbying disclosures that different states provide on which bills companies have lobbied, but there is evidence that lobbyists working on behalf of these companies have lobbied the lawmakers who have proposed and championed this legislation.

Tanzina: Basically, and Ron, it sounds like these laws are being targeted to a specific viewpoint. Essentially, in this case, against people who are against fossil fuels. Is that legal? This is something that we hear a lot from advocates of free speech. Doesn't the first amendment cover all points of view.

Ron: These laws do appear to be viewpoint based. They are, I think, designed to have a chilling effect on anti fossil fuel, anti pipeline public protest. The problem, I think, is that on their face, many of these laws target unlawful conduct where regulation of conduct implicates speech so long as the court finds that the primary purpose for enacting the law was unrelated to suppression of viewpoint, then it passes first amendment muster.

There's a fairly terrible case. If memory serves written by Chief Justice Warren called O'Brian. Mr. O'Brien burned his draft card, and the Congress had enhanced the penalties for draft card burning during the anti-Vietnam war protests and the Supreme court in an act of stunning willful blindness said that Congress was simply concerned with the administrative efficiency of the selective service system and was unconcerned completely with suppressing anti-Vietnam war viewpoints.

The problem is that while a viewpoint based law is subject to strict scrutiny and usually will fail, a lot of times, federal judges are willfully blind to the real motivation of the law, and what these state governments are going to say is that these laws are designed to protect critical infrastructure in a time of global pandemic and therefore targeted protection is needed because these facilities require targeted and special protection.

That feels bogus to me, but if you were to ask the fifth circuit judges who held Mr. McKesson potentially legally responsible for the bad act of someone who happened to be at the protest, I fear what the answer would be. You're exactly right. These should be deemed viewpoint-based and they should be subject to strict scrutiny. I am not confident that's how it would work out with 200 very conservative judges. Conservative, not in an institutional way, conservative in a nakedly partisan or ideological way.

Tanzina: The rump administration has been very clear in its opposition to the Obama era environmental changes that were put in place. Alex, are you noticing that certain States where this new legislation is being pushed, are those States in line politically with where the President is and does that theory hold true right now?

Alex: Certainly. I mean, it hasn't only been Republicans. Notably the Democratic governor of Kentucky approved one of the first laws of these to pass during the pandemic, although it was a significantly watered-down version of what had been initially proposed. These are overwhelmingly in red States. Now, these are still early days. There have not been many prosecutions done under these laws as it stands.

There is one case that is currently working its way through the courts in Texas where about half a dozen Greenpeace protesters who suspended themselves from a bridge over a very busy shipping canal down on the Texas coast and temporarily halted the movement of refined petroleum, are being charged under this and you're likely to see more.

We are expecting for this year to be-- Once construction can reopen and states are fully reopened for business like that, there's going to be a big push around completing a lot of pipeline projects that had been held up in the courts or held up because of environmental review and the administration has through executive order decided to roll back what the environmental reviews that are actually required to complete certain projects.

As those things push forward, you can expect that there will be more protests, and I would expect to see a lot more testing of these charges in court.

Tanzina: In advance of those protests Alex, to that point, I'm wondering, the question is always what is the counter legal approach happening here? Are environmental activists and people who are coming out to organize these protests, are they preparing to counter this current legal argument that's being made?

Alex: Certainly the better funded and more litigious environmental groups are keeping an eye on this and are pushing back against it. I think it's worth noting that a lot of those resources so far have just been focused on trying to protect the existing environmental safeguards that we've had and that are actively being rolled back. This has been, I think, a fight that has gone under examined and one that is really ripe for some type of conflict once somebody is charged.

At the moment, I think a lot of the groups that are actively suing the administration and are actively putting together legal strategies to defend environmental rules are really focused on just trying to protect the scant environmental protections that already existed.

Tanzina: Ron, you mentioned a Black Lives Matter protest and the use of this idea of a vicarious liability in that case. As you are well aware, none of us can ignore the fact that we are collectively in a moment of protest in the country. We are now in the third week of nonstop protest for racial justice and against police brutality.

Do you see the use of vicarious liability being extended to potentially suppress different protests for racial justice, for Black Lives Matter, for women who were speaking out against discrimination, the list goes on and on?

Ron: It terrifies me in terms of its potential chilling effect and to go back to something that Alex mentioned, I would predict in terms of vicarious liability provisions, the causes encourages, directs, advises. I don't think we're going to see a lot of charges brought on those facts because that would allow a protest organizer to bring that first amendment challenge.

The utility of these laws really is the interrorem effect that could have. If a Greta Thunberg wants to give a speech in South Dakota, she needs to think carefully about what she says.

Can she say, stop this pipeline now, or does she need to make a more nuanced argument for fear that she or her organization might face criminal or civil liability if someone later trespasses and damages construction equipment for a pipeline?

There's also a resonance with a number of state laws that prohibit using fraud or false pretenses to gain access to industrial farming facilities. These are so-called ag-gag laws. A number of States, I think over a dozen have adopted them.

They also prohibit non consented to recordation of industrial farming practices, and you can see why. If you show animals being treated really terribly, tortured, that's going to create a public dialogue that might lead to state or federal regulation prohibiting, particularly egregious industrial farming practices.

Rather than addressing animal cruelty, a number of state legislatures have adopted laws to make it harder to gain access to these facilities to record these behaviors. That's part of these fossil fuel laws too. A number of the draft bills, one in an Alabama, for example, prohibited using a drone to simply photograph a pipeline existing or under construction. A part of this model legislation is aimed squarely at prohibiting news gathering that would then help inform the dialogue that would move public policy on these questions.

With ag-gag, environmental protest with the McKesson case, yes, it seems to me that there's a concerted effort to raise the stakes by threatening vicarious liability on protest organizers who have in no way whatsoever, directly conspired or aided or abetted a trespass or damage to property.

It's really crucial, I think, that if we have a free speech court and conservative members of the Supreme court like John Roberts like to proclaim how absolute their commitment to the first amendment is, they need to grant cert in the McKesson v Doe case from the fifth circuit, and make clear that decisions like Watts Brandenburg in a case called Claiborne hardware, which also you can engage in hyperbolic speech without being criminally or civilly punished that these cases, these precedents preclude the imposition of vicarious liability and organizations like Greenpeace that organize a peaceful rally, which is followed perhaps by individuals engaging in unlawful acts of civil disobedience.

Another analogy is to slap suits. There are anti-slap suit statutes, and in some cities. That's strategic litigation against public participation. They feel like slap statutes in that they create this free floating potential liability which has the effect of stifling public discourse. It has the purpose of stifling that public discourse. I think the goal is to impede or delay a national consensus about moving toward renewable energy.

When you think about the tobacco institute and the tobacco companies from the time of the surgeon general to the settlements in the late '90s, early 2000s, there's a real strategic and financial advantage to simply delaying a social consensus about something like the morality and desirability of non-renewable carbon fuels.

If these protests are inhibited and the consensus is delayed, think about the Green New Deal, that's an opportunity to move natural gas and oil in the interim, and to take financial advantage of these strategic investments these companies have made. Makes perfect sense. It's a very low-cost investment in trying to preserve your ability to do business.

I feel like I'm sounding a little bit like Who Framed Roger Rabbit with Detroit and the trolleys street cars in LA, but it's the same motive, I think, for business. We want to keep doing business as we've always done it, and these protesters are in the way.

Tanzina: Ron Krotaszynski is the John S. Stone Chair at the University of Alabama school of law, and Alex Kaufman is a senior climate reporter at HuffPost. Thanks to you both for joining us.

Ron: Thank you.

Copyright © 2020 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.